ENDA LegislationHalf a loaf is worse

The National Law Journal
Monday, November 19, 2007

he first bill specifically targeting job discrimination based
on sexual orientation was introduced in Congress in 1996; it failed
in the Senate by only one vote. On Nov. 7, the current version,
H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA),
passed in the House, 235 to 184. The original ENDA, H.R. 2015,
covered not only gays, lesbians and bisexuals, but also transgender
individuals (collectively, GLBT): people whose "gender-related identity, appearance,
or mannerisms" differ from their "designated sex at birth." The
Democratic leadership pulled it in favor of H.R. 3685, which omits protection
for transsexuals, cross-dressers and other employees with nonconforming gender
identities. They did so because a head count showed they lacked the votes necessary
to enact the more inclusive law.

This fallback move seriously split H.R. 2015's proponents,
who disagreed over whether to support the "half-loaf" measure.
Although compromise inheres in the legislative process, here the
reformers should have voted "nay" or,
if they could not stomach that, simply "present." Sacrificing
transgendered workers' interests to those of their homosexual and
bisexual colleagues — in
effect, removing the "T" from GLBT — was bad strategy
and worse policy. Backers of the substitute bill, such as Representative
Barney Frank, D-Mass., and the Human Rights Campaign, focused on
the historic prospect of getting at least one house of Congress
to ban adverse employment actions based on sexual orientation.
They also stressed that progress is often incremental. Granted,
ENDA's passage marks a watershed in the advancement of GLB rights.
Yet consider the cost. Weighing the positive against the negative,
H.R. 3685 constitutes a backward step: morally, logically, legally
and practically.

First, unlike a compromise measure exempting certain
potential defendants, one that eliminates a class of victims who
have shared the core hardships and aspirations of the statute's
beneficiaries fails to pass the morality test. It sends a message
that some members of the targeted group deserve to be treated more
equally than others. Worse still, among sexual and gender minorities,
transgender employees are the most vulnerable to discrimination.
By 2008, 20 states and the District of Columbia will have laws
protecting gay, lesbian and bisexual employees from workplace bias,
but only 12 also extend to the transgendered. In addition, while
88% of Fortune 500
companies include sexual orientation in their equal employment
policies, merely a quarter cover gender identity as well. American
Civil Liberties Union, Working in the Shadows (2007).

Abandoning
the transgender group is, thus, tantamount to tossing the weakest
overboard to lighten the lifeboat. Moreover, as a matter of logic
and law, sexual orientation and gender identity bias are inextricably
intertwined. In the words of Matt Coles, director of the ACLU's
LGBT & AIDS Project, both stem from
deep-seated "beliefs about what is or is not appropriate for
men and women" — with
respect to jobs, relationships or self-presentation. "It
makes little sense to split them apart."

Ironically, a handful
of federal cases differentiate between the two in a manner that
favors transgender plaintiffs. They rely on Price
Waterhouse v. Hopkins, 490
U.S. 228 (1989). There, the U.S. Supreme Court upheld the sex discrimination
suit of a woman denied partnership in an accounting firm because
she did not dress and behave in a manner deemed sufficiently feminine.
These decisions recognize that penalizing any worker for nonconformity
to gender stereotypes now violates Title VII of the Civil Rights
Act of 1964. But, in a further ironic twist, some others continue
to follow the pre-Price Waterhouse pattern of conflating
gender identity with homosexuality — and rejecting bias claims
founded on either. (A number of cases have also sustained transgender
discrimination actions based on state disability laws, a course
unavailable under relevant federal statutes, which expressly exclude
transgender litigants.) This spotty coverage makes national protection
for them imperative.

Finally, from a practical standpoint, the
incremental reform approach will likely leave the transgender community
out in the cold for a long time, as Congress does not typically
revisit new legislation in a hurry. Meanwhile, the "leaner
and meaner" ENDA may, if enacted, actually impede helpful
federal-court developments. Because it specifically defines sexual
orientation as "homosexuality,
bisexuality or heterosexuality," employers could argue that
Congress plainly intended to bar claims based on gender identity,
in light of the scrapping of H.R. 2015.

A companion bill will now
be introduced in the Senate. One hopes that its supporters there
will firmly resist its opponents' "divide
and conquer" strategy
and reject a stripped-down ENDA in favor of the inclusive version.